Marable v. Empire Truck Sales of La., LLC

• Decision Date: 23 June 2017
• Docket Number: NO. 2016–CA–0876, NO. 2016–CA–0877, NO. 2016–CA–0878,2016–CA–0876
• Citation: 221 So.3d 880
• Parties: Wayne MARABLE Individually and as Curator on Behalf of Connie Marable v. EMPIRE TRUCK SALES OF LOUISIANA, LLC and Curtis Wayne Hudspeth Wayne Marable Individually and as Curator on Behalf of Connie Marable v. Empire Truck Sales of Louisiana, LLC and Curtis Wayne Hudspeth William "Bill" Jones and Engelique Jones v. Empire Truck Sales, LLC, Curtis Wayne Hudspeth, Wayne Marable, Great West Casualty Company, Daimler Trucks North America, LLC and KLLM Transport Services, LLC
• Court: Court of Appeal of Louisiana — District of US

221 So.3d 880

Wayne MARABLE Individually and as Curator on Behalf of Connie Marable

v.EMPIRE TRUCK SALES OF LOUISIANA, LLC and Curtis Wayne Hudspeth

Wayne Marable Individually and as Curator on Behalf of Connie Marable

v.Empire Truck Sales of Louisiana, LLC and Curtis Wayne Hudspeth

William "Bill" Jones and Engelique Jones

v.Empire Truck Sales, LLC, Curtis Wayne Hudspeth, Wayne Marable, Great West Casualty Company, Daimler Trucks North America, LLC and KLLM Transport Services, LLC

NO. 2016–CA–0876

NO. 2016–CA–0877

NO. 2016–CA–0878

Court of Appeal of Louisiana, Fourth Circuit.

JUNE 23, 2017

Rehearing Denied July 27, 2017

Caleb H. Didriksen, III, Erin Bruce Saucier, DIDRIKSEN LAW FIRM, PLC, 3114 Canal Street, New Orleans, LA 70119, And, Tony Clayton, CLAYTON, FRUGE & WARD, 3741 Highway 1 South, Port Allen, LA 70767, COUNSEL FOR PLAINTIFF/APPELLEE

C. G. Norwood, Jr., Patrick John O'Cain, McGLINCHEY STAFFORD, PLLC, 601 Poydras Street, 12th Floor, New Orleans, LA 70130, And, Janika D. Polk, KUCHLER POLK SCHELL WEINER & RICHESON, LLC, 1615 Poydras Street, Suite 1300, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano )

Judge Madeleine M. Landrieu

In this products liability action, the plaintiff, Connie Marable, suffered an anoxic brain injury

and other permanently disabling injuries when she lost her footing and became pinned underneath the two rear tires of an over-the-road tractor¹ while running alongside the moving vehicle and attempting to turn the ignition key to shut off its engine. The plaintiff will require 24–hour care for the rest of her life and will never regain her former lifestyle. Suit to recover damages was filed on the plaintiff's behalf. The matter proceeded to trial, after which a jury found the defendants, Daimler Trucks North America ("DTNA"), the manufacturer of the tractor, and Wayne Marable, the owner of the tractor and the plaintiff's husband, liable for the accident, apportioning fault between the two, and awarded damages. The trial court entered judgment in accordance with the jury's verdict on April 29, 2016. DTNA moved for a judgment notwithstanding the verdict ("JNOV") on the issues of liability and damages, which the trial court denied on June 13, 2016.

DTNA suspensively appealed the judgment and the trial court's denial of its motion for JNOV. DTNA also filed an exception of prescription in this court on the ground that the plaintiff's claims against it, filed two years after the date of the accident, had prescribed due to the exoneration at trial of a timely-sued alleged tortfeasor. The plaintiff opposed DTNA's exception, and the plaintiff filed a motion to supplement the appellate record with Volume One of the record of the legal proceedings by which she was interdicted as a result of her injuries from this accident. Alternatively, the plaintiff also filed a motion to remand the case for trial of the prescription issue only. For the following reasons, we deny DTNA's exception of prescription; deny the plaintiff's motions to remand and to supplement; affirm the trial court's judgment denying DTNA's motion for JNOV on the issue of liability; and affirm the trial court's judgment denying DTNA's motion for JNOV on the issue of damages. The trial court judgment adopting the jury's allocation of fault, ninety percent to DTNA and ten percent to Mr. Marable, is not disturbed on appeal. The trial court judgment is affirmed in all respects.

FACTS AND PROCEDURAL HISTORY

In 2006, the defendant, Wayne Marable, who had been driving commercial trucks since 1987, began a lease-purchase program with his employer, KLLM Transport Services, LLC ("KLLM"), for an 18–wheeler tractor, a 2007 Freightliner Columbia equipped with a 2006 Detroit Diesel Series 60 engine. The tractor was custom manufactured by DTNA, pursuant to specifications submitted to it by KLLM. By the time of the accident sued upon herein in 2012, Mr. Marable was the owner of the tractor, which had been driven over 600,000 miles.

During a trip to North Carolina in April 2012, Mr. Marable observed that the clutch on the tractor was slipping. On his way home to Louisiana, he took the tractor to Empire Truck Sales of Louisiana, LLC ("Empire") for repairs. Empire replaced the tractor's clutch. Following the repairs, Mr. Marable drove the truck home and parked it in the parking lot of Lowe's Home Improvement ("Lowe's") located on Read Boulevard in New Orleans East, where the tractor remained for several weeks.

On May 14, 2012, Wayne and Connie Marable drove from their home to the Lowe's parking lot in order for Mr. Marable to prepare his tractor for a trip he was scheduled to make on behalf of KLLM. This was his first trip on the road in the tractor since the prior clutch repair. According to Mr. Marable, upon arriving at his tractor, he performed his usual pre-trip routine: he got into its cab; checked that its parking brake was engaged; moved the gear shifter from left to right to make sure the transmission was in neutral; and, started the engine. Next, Mr. Marable exited the tractor, with its engine idling in neutral and the park brakes engaged, and began performing the required pre-trip inspection and loading items from his car into the tractor.²

As Mr. Marable went to open the tractor's passenger door, he heard the engine begin to race followed by a loud "pop or bang." The vehicle began to suddenly move with no one in the cab. Mr. Marable dropped his clothes on the ground and yelled to the plaintiff to open the driver's side door and shut off the ignition key in order to kill the engine. The ignition is located to the lower left side of the steering column, and its key can be turned on or off while standing on the ground. As the tractor began to suddenly move forward, the plaintiff ran alongside it in an attempt to turn the key off. In the process, she lost her footing and fell going underneath the truck. The plaintiff was dragged by the tractor for a distance and became pinned face down underneath its rear tires. The tractor eventually came to a stop with its front wheels extending over a curb.

The plaintiff sustained severe and permanently disabling injuries as a result of the accident, including an anoxic brain injury

. Consequently, she is in a minimally conscious state, meaning she is minimally aware of her surroundings, but not consciously aware of her condition. She has a tracheotomy, which interferes with her ability to verbally communicate. The plaintiff's injuries are permanent, and she will require 24–hour care for the rest of her life.

Within one year of her accident, the plaintiff was interdicted, and a curator and under-curator were appointed to act on her behalf. Thereafter, through her curator, suit was filed on her behalf, originally naming as defendants, Empire and its employee, Curtis Wayne Hudspeth. DTNA, Wayne Marable and KLLM were later added as defendants by way of a supplemental and amending petition.³ As to her claims against DTNA, the plaintiff alleged that pursuant to the Louisiana Products Liability Act, the tractor it manufactured was unreasonably dangerous, both in design and due to an inadequate warning.

In April 2016, the matter proceeded to trial against DTNA and Wayne Marable. The case was tried before a jury over six days from April 4, 2016 to April 12, 2016. After deliberating, the jury returned a verdict finding, by a preponderance of the evidence, that Mr. Marable's tractor manufactured by DTNA "was unreasonably dangerous in its design" and "that the unreasonably dangerous design ... was a proximate cause of the damages sustained by Mrs. Connie Marable." The jury further determined that Mr. Marable was negligent in connection with his wife's accident and that his negligence was also a proximate cause of the damages she sustained. The jury apportioned 90% of the fault for the accident to DTNA and 10% to Mr. Marable, and awarded the following damages to the plaintiff:

Past Medical Expenses—$898,775.77⁴

Future Medical & Life Care Expenses—$10,549,399.00

Past & Future Physical Pain & Suffering—$10,000,000.00

Past & Future Mental Pain & Suffering—$10,000,000.00

Past & Future Loss of Enjoyment of Life—$10,000,000.00

Scarring & Disfigurement—$10,000,000.00

On April 29, 2016, the trial court entered judgment in accordance with the jury's verdict for $51,448,174.77, plus judicial interest from April 17, 2014, the date of judicial demand, until paid, and for all recoverable costs.

DTNA filed a motion for JNOV on May 9, 2016, on the issues of liability and damages urging that the jury's verdict was manifestly erroneous because: (1) the plaintiff failed to prove the tractor design was unreasonably dangerous because no evidence was presented to establish that DTNA could have foreseen the accident or that the tractor's design was a proximate cause of her accident, and (2) the jury abused its discretion because a general damages award of forty million dollars is beyond what a reasonable trier of fact could assess for the injuries that left the plaintiff in a minimally conscious state

, and the evidence did not support a special damages award given the plaintiff's permanently disabling condition and reduced life expectancy. Following a hearing, the trial court denied DTNA's motion, with oral reasons, and rendered judgment on June 13, 2016. DTNA timely appealed the final judgment of April 29, 2016, and the trial court's judgment denying its motion for JNOV.

Thereafter, DTNA filed for the first time in this court a peremptory exception of prescription averring that the plaintiff's claims against it, filed more than two years after her accident and resulting injuries, had prescribed.

DTNA'S EXCEPTION OF PRESCRIPTION

The facts pertinent to the resolution of the prescription issue are undisputed. The accident occurred on May 14, 2012. The plaintiff, who was sixty-four years old at the time and was not an interdict, sustained serious injuries in the...